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United States v. Crum

United States Court of Appeals, Ninth Circuit

August 16, 2019

United States Of America, Plaintiff-Appellant,
v.
Marcus Scott Crum, Defendant-Appellee.

          Argued and Submitted December 5, 2018 Seattle, Washington

          Appeal from the United States District Court for the District of Idaho, D.C. No. 1:17-cr-00147-BLW-1, B. Lynn Winmill, District Judge, Presiding .

          Francis J. Zebari (argued), Special Assistant United States Attorney; Bart M. Davis, United States Attorney; United States Attorney's Office, Boise, Idaho; for Plaintiff-Appellant.

          Theodore Braden Blank (argued) and Robert K. Schwarz, Federal Defender Services of Idaho, Boise, Idaho, for Defendant-Appellee.

          Before: William A. Fletcher, Jay S. Bybee, and Paul J. Watford, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel vacated a sentence and remanded for resentencing in a case in which the district court held that delivery of methamphetamine in violation of Oregon Revised Statutes § 475.890 does not qualify as a "controlled substance offense" under U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(b).

         The district court agreed with the defendant that Oregon's delivery-of-methamphetamine offense is overbroad as compared to the federal definition of "controlled substance offense" because only the former encompasses soliciting the delivery of methamphetamine. The panel held that United States v. Shumate, 329 F.3d 1026 (9th Cir. 2003) (construing the same Oregon definition of "delivery"), compels the holding that § 475.890 is not overbroad on the basis that it encompasses soliciting delivery. The panel that the district court erred in applying Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), which is inapplicable in that it involved the different analysis employed for determining whether an offense qualifies as a "drug trafficking crime" under the Controlled Substance Act.

         The defendant asked the panel to reconsider this court's decision in Shumate on the ground that the commentary to § 4B1.2 (Application Note 1), on which Shumate relied to hold that "controlled substance offense" encompasses solicitation offenses, lacks legal force because it is inconsistent with the text of the guideline. The panel wrote that if it were free to do so, it would hold that the commentary improperly expands the definition of "controlled substance offense" to include other offenses not listed in the text of the guideline, but that it is bound by this court's decision in United States v. Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993), which held that Application Note 1 of § 4B1.2 is "perfectly consistent" with the text of § 4B1.2.

         The panel rejected the defendant's argument that Oregon's delivery-of-methamphetamine offense sweeps more broadly than the federal definition of "controlled substance offense" because the Oregon offense criminalizes the mere offer to sell methamphetamine. The panel explained that as noted in Sandoval, offering to sell a controlled substance constitutes soliciting delivery of a controlled substance, and because solicitation does fall within the definition of "controlled substance offense" under § 4B1.2, an offer to sell a controlled substance under Oregon law is a categorical match for solicitation of a "controlled substance offense" under § 4B1.2.

         The panel concluded that the district court should therefore have applied a base offense level of 20 under § 2K2.1(a)(4)(A).

         Dissenting, Judge Watford wrote that the Oregon offense criminalizes more conduct than the federal offense does, rendering the Oregon offense overbroad, because a mere offer to sell does not constitute solicitation of a "controlled substance offense."

          OPINION

          PER ...


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